Music industry urges EU to not water down safe harbour reform

A consortium of trade groups representing all the different copyright industries has written to the European Council – a committee made up of leaders from each EU country – urging them to push for the somehow-still-in-development new European copyright directive to include some tangible safe harbour reform. The letter responds to “certain specific suggestions” in the latest draft of the directive about which the copyright reps are “significantly concerned”.

It’s article thirteen of the new copyright directive that seeks to increase the liabilities of user-upload websites like YouTube, which currently argue that they can’t be held liable for any copyright infringing material uploaded by their users because of the so called safe harbour. That safe harbour, which stems from an e-commerce directive in Europe, says internet companies can’t be held finically liable for their users’ infringement providing they offer some sort of takedown system for copyright owners, like YouTube’s Content ID.

The copyright industries – led by the music industry – want the safe harbour reformed so that it no longer applies to user-upload sites, which, they argue, were never envisaged to be a beneficiary of the safe harbour when it was first conceived in the 1990s. Doing so, the music community reckons, would close the so called ‘value gap’, ie the difference between the royalties paid by streaming platforms like Spotify and those paid by safe harbour dwelling services like YouTube.

In the first draft of the new copyright directive, article thirteen goes some way to achieving that. Though in subsequent discussions the copyright industries have been trying to get said article beefed up, while the tech sector wants it sufficiently watered down to be basically pointless.

Yesterday’s letter from all those trade bodies – which included top musical trade group acronyms like IFPI, IMPALA, CISAC, GESAC, CIAM, ECSA, ICMP and IMPF – raised concerns over three proposals that are now being considered. These proposals, if implemented, they said, might mean that -“far from ensuring legal certainty” – reform “could be detrimental to our sectors, thereby negating the directive’s intention”.

First they object to a proposed clause defining which services would see their liabilities increased as a result of article thirteen. That definition, they write, “could leave most [user-upload] platforms outside the scope” of the safe harbour limiting provision, “despite the fact they continue to provide access to copyright protected works and other subject matter”.

Next, they oppose the suggestion that the words “in full knowledge” be included in the definition of when a user-upload service is considered to be communicating a copyright work to the public. This, they say, risks narrowing the scope of the ‘communication control’ element of copyright which, they reckon, would contravene EU jurisprudence. And you wouldn’t want to do that, would you?

Thirdly, states the letter: “As currently proposed, the language of article 13.4 and relevant recitals is tantamount to a new ‘safe harbour’ for the services involved. It conditions copyright liability upon implementation of certain measures by services, and even refers to their subjective efforts. This would seriously undermine fundamental principles of European copyright in terms of the exclusive nature of the communication to the public right”.

Not only that, but “such an unwarranted liability privilege risks breaching the EU’s obligations under international copyright treaties. We firmly believe it feasible to mitigate the circumstances in which measures are applied, without interfering with copyright liability. We invite member states to work on this basis and reconsider the current drafting in article 13.4”.

So that’s them told. The directive needs to be passed by both the European Parliament and the EU Council, the latter made up relevant ministers from each member state. Once passed, individual EU countries then need to implement the changes at a national level. It’s thought that the UK will do likewise even if the deadline for complying with the directive falls after Brexit Day.

In the new letter to the separate European Council – which also brings together each member state’s government – they conclude: “The proposed [new] law should seek to correct the ongoing unfairness in the marketplace by establishing legal certainty and ensuring effective protection of creators and producers’ rights vis-à-vis user-uploaded content services”.